Citation NR: 9618409
Decision Date: 06/27/96 Archive Date: 07/08/96
DOCKET NO. 92-19 486 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Sioux
Falls, South Dakota
THE ISSUES
1. Entitlement to service connection for a kidney disorder
characterized as right hydronephrosis secondary to a
horseshoe kidney.
2. Entitlement to an increased disability evaluation for
left total hip replacement residuals, currently evaluated as
30 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counse
INTRODUCTION
The veteran had certified active service from June 1980 to
July 1986. This matter came before the Board of Veterans'
Appeals (Board) on appeal from an October 1991 rating
decision of the Sioux Falls, South Dakota, Regional Office
(RO) which denied service connection for a kidney disorder
characterized as right hydronephrosis secondary to a
horseshoe kidney, and an increased disability evaluation for
the veteran’s service-connected left total hip replacement
residuals. In September 1994, the Board remanded the
veteran’s claims to the RO for further development of the
record. The veteran has been represented throughout this
appeal by The American Legion.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts that service connection is warranted for
a kidney disorder and that the record supports an increased
disability evaluation for his left total hip replacement
residuals. He contends that a horseshoe kidney was initially
identified during active service and subsequently
precipitated hydronephrosis. He advances that his left hip
disability is productive of significant physical impairment
which inhibited his ability to farm and necessitated his
return to school. The veteran avers that the Department of
Veterans Affairs (VA) examinations for compensation purposes
of record are inadequate for evaluation purposes.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this
matter, and for the following reasons and bases, it is the
decision of the Board that the veteran has not submitted a
well-grounded claim for service connection for a kidney
disorder. For the reasons and bases discussed below, the
issue of an increased disability evaluation for left total
hip replacement residuals is remanded to the RO for further
action.
FINDING OF FACT
The record contains no competent evidence showing that an
acquired kidney disorder originated in or was aggravated by
active service. The veteran’s congenital horseshoe kidney
was not shown to be symptomatic during active service.
CONCLUSION OF LAW
The veteran has not submitted a well-grounded claim of
entitlement to service connection for a kidney disorder. 38
U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, it is necessary to determine if the veteran has
submitted a well-grounded claim within the meaning of 38
U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has
properly assisted him in the development of his claim.
Generally, a “well-grounded” claim is one which is plausible.
The United States Court of Veterans Appeals (Court) has
directed that in order for a claim for service connection to
be well-grounded, there must be (1) competent evidence of a
current disability; (2) proof as to incurrence or aggravation
of a disease or injury in service; and (3) competent evidence
of a nexus between the inservice injury or disease and the
current disability. Caluza v. Brown, 7 Vet.App. 498 (1995).
When a veteran’s claim is determined to be not well-grounded,
VA does not have a statutory duty to assist him in developing
the facts pertinent to his claim. However, VA may be
obligated under the provisions of 38 U.S.C.A. § 5103(a) (West
1991) to advise him of the evidence needed to complete his
application. This obligation is dependent upon the
particular facts of the claim and the extent to which the
Secretary of VA has advised the veteran of the evidence
necessary to support a claim for VA benefits. Robinette v.
Brown, 8 Vet.App. 69 (1995).
Service connection may be granted for chronic disability
arising from disease or injury incurred in or aggravated by
peacetime service. 38 U.S.C.A. § 1131 (West 1991). A
preexisting injury or disease will be considered to have been
aggravated by active military, naval, or air service, where
there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability is due to the natural progress of the disease.
The specific finding requirement that an increase in
disability is due to the natural progress of the condition
will be met when the available evidence of a nature generally
acceptable as competent shows that the increase in severity
of a disease or injury or acceleration in progress was that
normally to be expected by reason of the inherent character
of the condition, aside from any extraneous or contributing
cause or influence peculiar to military service.
Consideration will be given to the circumstances, conditions,
and hardships of service. 38 C.F.R. § 3.306 (1995). Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (1995). Congenital or
developmental defects as such are not diseases or injuries
within the meaning of applicable legislation providing for
compensation benefits. 38 C.F.R. § 3.303(c) (1995). Service
connection for such defects may be granted where they have
been subject to an inservice aggravation. Wilkinson v. Brown
, 8 Vet.App 263 (1995).
A July 1984 X-ray study of the pelvis from Calvin Andersen,
M.D., reveals that the veteran exhibited considerable
activity in the right renal pelvis. Dr. Andersen commented
that “whether this is just a benign extra-renal pelvis or
implies any significant pathology is very questionable
finding.” At a March 1986 physical examination conducted for
an Army medical evaluation board, the veteran neither
complained of nor exhibited any genitourinary system
abnormalities.
A July 1991 VA treatment entry conveys that a contemporaneous
intravenous pyelogram with a limited computerized tomography
study showed horseshoe kidneys, with moderate dilation of the
calices and pelvis of the right kidney and mild dilation on
the left side. A September 1991 VA hospital summary reports
that the veteran was found to have right nephrosis, and that
there was pyelographic evidence of a horseshoe kidney with a
partial obstruction of the right collecting system. He was
diagnosed with right hydronephrosis secondary to a horseshoe
kidney.
In his May 1992 substantive appeal, the veteran asserts that
the kidney abnormalities identified by VA medical personnel
in 1991 were consistent with Dr. Andersen’s 1984 findings
during active service. In a June 1992 written statement, the
accredited representative avers that kidney disease was
discovered during active service.
A November 1994 VA urological evaluation states that that the
veteran’s claims file was reviewed. The examiner commented
that
[i]n regard to the above, my feeling is
the veteran did not have symptoms of a
kidney disorder during his military
service and to this day does not have
symptoms in regard to his renal disorder.
He did have minimal evidence of a
possible dilation of the renal pelvis on
his bone scan of 1984 as would be
expected. The veteran’s hydronephrosis
is secondary to ureteropelvic junction
obstruction on the right side which is
associated with horseshoe kidney in 30%
of the time. This is a congenital
defect. In my opinion, as the veteran
did not have symptoms of any renal
disorder during military [service] and
does not have [any symptoms] to this date
(sic). It cannot be considered [that] he
had any evidence
of renal disorder during military time
and did not have any exacerbation of his
underlying congenital disorder during
military time.
Evaluations from Janet E. Smith, M.D., dated in September
1995 conclude that: (1) the veteran initially exhibited
evidence of a congenital horseshoe kidney with dilation in
1984; (2) hydronephrosis represents a natural progression of
the veteran’s horseshoe kidney; and (3) the November 1994 VA
evaluation accurately outlined the veteran’s disability
picture.
The Board observes that the veteran's claim file is devoid of
any competent evidence establishing either the onset of an
acquired kidney disorder or an inservice aggravation of his
congenital horseshoe kidney. The veteran’s congenital
disability initially became symptomatic in 1991,
approximately five years after service separation. Indeed,
the veteran’s claim is supported solely by the accredited
representative’s and his own statements on appeal. The Court
has held that lay assertions of medical causation do not
constitute competent evidence to render a claim well-
grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The Court
has commented that
[j]ust as the BVA must point to a medical
basis other than its own unsubstantiated
opinion (Colvin [v. Derwinski, 1 Vet.App.
174, 175 (1991)]), the veteran cannot
meet his initial burden by relying upon
his own, or his representative's,
opinions as to medical matters.
Robinette v. Brown, 8 Vet.App. 69, 74
(1995) citing Moray v. Brown, 5 Vet.App.
211, 214 (1993).
As the record lacks competent evidence establishing either
the onset of an acquired kidney disorder or an inservice
aggravation of his congenital horseshoe kidney, the Board
concludes that the veteran’s claim for service connection is
not well-grounded. Accordingly, the instant claim is denied.
38 U.S.C.A. § 5107 (West 1991).
The veteran is informed that if he is able to produce
competent evidence attributing the onset or aggravation of
the claimed disorder to his period of service, he should
petition to reopen the claim. The veteran’s claim has been
decided on a basis different than that employed by the RO.
The Board finds that the veteran has not been prejudiced by
such action.
ORDER
Service connection for a kidney disorder characterized as
right hydronephrosis secondary to a horseshoe kidney is
denied.
REMAND
In his June 1992 written statement, the accredited
representative advances that, while the examining VA
physician at an October 1991 VA examination for compensation
purposes indicated that the veteran exhibited slight
limitation of motion of the left hip with pain,
contemporaneous measurement of the range of motion of the
joint showed moderately severe limitation of motion. In
reviewing the record, the Board observes that the clinical
documentation of record is in conflict as to the veteran’s
current left hip disability picture. The report of the
October 1991 VA examination for compensation purposes relates
that the veteran exhibited “a fairly good full range of full
flexion and full extension” and “maybe a 5-10 degree
limitation of full abduction” with pain. Contemporaneous VA
physical therapy found left hip flexion from 0 to 89 degrees
and abduction of 0 to 22 degrees. Average normal range of
motion of the hip is from 0 to 125 degrees. 38 C.F.R. § 4.71
(1995). In light of the divergent clinical findings, the
Board finds that additional orthopedic evaluation would be
helpful in resolving the issues raised by the instant appeal.
In reviewing a similar factual scenario wherein an increased
disability evaluation was sought, in part, upon alleged
functional impairment due to pain, the Court has held that
the RO must analyze the evidence of pain and determine the
level of associated functional loss in light of 38 C.F.R.
§ 4.40 (1995), which requires VA to regard as "seriously
disabled" any part of the musculoskeletal system that becomes
painful on use. Ferraro v. Derwinski, 1 Vet.App. 326, 330
(1991). The RO has not considered the applicability of 38
C.F.R. § 4.40 (1995) to the veteran's claim for an increased
disability evaluation for left total hip replacement
residuals.
In light of VA's duty to assist the veteran in the proper
development of his claim, as mandated by the provisions of
38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the
Court in Ferraro and Littke v. Derwinski, 1 Vet.App. 90, 92-
93 (1990), this case is REMANDED for the following actions:
1. The RO should request that copies of
all available VA clinical documentation
pertaining to the veteran's treatment
after February 1992 be forwarded for
incorporation into the record.
2. The RO should then schedule the
veteran for a VA orthopedic examination,
in order to determine the current nature
and severity of his service-connected
left total hip replacement residuals.
All indicated tests and studies should be
accomplished and the findings, including
active and passive ranges of motion,
should be reported in detail. The
examiner should identify the normal range
of motion of the hip; the limitation of
activity imposed by the veteran’s
service-connected left hip disorder; and
any associated pain with a full
description of the effect of the
disabilities upon the
veteran’s ordinary and vocational
activities. The presence or absence of
functional limitation due to pain in the
left hip should be identified. The
claims folder should be made available to
the examiner or examiners prior to and
during the examination. The examination
report should reflect that such a review
was conducted.
3. The RO should then readjudicate the
veteran's claim for an increased
disability evaluation for his left total
hip replacement residuals, and the
applicability of 38 C.F.R. §§ 4.40, 4.45,
4.59 (1995) and the Court's holding in
Ferraro v. Derwinski, 1 Vet.App. 326, 330
(1991).
4. If the veteran’s claim remains
denied, the RO should then prepare a
rating decision and a supplemental
statement of the case which addresses
whether the veteran’s claims should be
submitted to the Chief Benefits Director
or the Director, VA Compensation and
Pension Service, for assignment of an
extraschedular rating under the
provisions of 38 C.F.R. § 3.321(b)(1)
(1995).
When the requested action has been completed, and if his
claim continues to be denied, the veteran should be afforded
a reasonable period of time in which to respond to the
supplemental statement of the case. Thereafter, subject to
current appellate procedures, the case should be returned to
the Board for further appellate consideration if appropriate.
The veteran need not take any action unless he is further
informed. The purpose of this REMAND is to allow for further
development of the record and due process of law. No
inference should be drawn from it regarding the final
disposition of the veteran's claim.
MICHAEL S. SIEGEL
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: 38 U.S.C.A. § 7104 (West 1991 &
Supp. 1995), Under 38 U.S.C.A. § 7266 (West 1991 & Supp.
1995), a decision of the Board granting less than the
complete benefit, or benefits, sought on appeal is appealable
to the Court within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date which appears on
the face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board.
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